R. v. Al Anazi Date:, 2015 BCPC 253

Citation: R. v. Al Anazi Date: 20150714 2015 BCPC 0253 File No: AH77369968-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. ABDULLAH NAFAA AL ANAZI REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for the Crown: Cst. Clayton McKay Counsel for the Disputant: Geofrey Simair Place of Hearing: Victoria , B.C. Date of Hearing: April 16, 2015 Date of Judgment: July 14, 2015

Introduction [ 1 ] These Reasons address an issue vexing law enforcement officers across British Columbia: how does an officer determine, particularly at roadside, if a driver producing a driver’s licence issued in another jurisdiction is exempt from the requirement under section 24(1) of the Motor Vehicle Act to hold a driver’s licence issued under that Act. [ 2 ] The law is clear.

The application of the facts of any one case to that law is not so clear, particularly in practical terms. [ 3 ] Mr Al Anazi, a citizen of Saudi Arabia, and in Canada under a Study Permit issued by Citizenship and Immigration Canada, was charged under section 24(1). He alleged an exemption from the requirement of doing so under section 34(1.1)(

c) of the Motor Vehicle Act . The Legislation [ 4 ] Sections 24(1) and 34(1.1)(

c) provide: 24

(1) Except when accompanied by a person authorized by the Insurance Corporation of British Columbia to examine persons as to their ability to drive and operate motor vehicles, a person must not drive or operate a motor vehicle on a highway unless, in addition to any licence or permit which he or she is otherwise required to hold under this Act, the person holds a subsisting driver's licence issued to him or her under this Act of a class appropriate to the category of motor vehicle driven or operated by him or her. 34

(1.1) Subject to subsection (1.2), the following persons are exempt, for the period specified, from the requirements respecting the holding of a driver's licence issued to him or her under this Act: (

a) a person who has a validly issued and subsisting driver's or operator's licence or permit issued according to the laws where he or she is ordinarily resident, for 6 months from the date he or she last entered British Columbia; (

b) a person who has become ordinarily resident in British Columbia and who has a validly issued and subsisting driver's or operator's licence or permit issued according to the laws of the jurisdiction where he or she was most recently ordinarily resident, for 90 days after he or she became ordinarily resident in British Columbia; (

c) a person who has a validly issued and subsisting driver's or operator's licence or permit issued according to the laws where he or she is ordinarily resident, for the period that the person is registered as a full time student at and attends any of the educational institutions listed in section 21 (2) (b); [ 5 ] A common requirement for each of paragraphs (a), (

b) and (

c) above is that the person has or had an ordinary residency outside of British Columbia. Once the person establishes an ordinary residence in British Columbia, the time period for acquiring a BC driver’s licence begins. [ 6 ] The Crown alleges that Mr Al Anazi had acquired an ordinary residence in British Columbia and therefore he was not excepted from the requirement of section 24(1). The Evidence [ 7 ] The facts of this matter are as follows.

[ 8 ] Mr. Al Anazi at the time of being charged was 29 years old and a citizen of Saudi Arabia. [ 9 ] When he was stopped in Saanich on March 12, 2014 for speeding, he produced a Saudi Arabian driver’s licence in his name that expired on December 1, 2017. He was the registered owner of the vehicle he was driving. He did not produce and did not have a driver’s licence issued by British Columbia. His Saudi driver’s licence was seized by the police officer. [ 10 ] Mr Al Anazi was born, lived and educated in Saudi Arabia.

Arabic is his first language. [ 11 ] In 2010, Mr Al Anazi came to Canada on a Study Permit visa to study English. He then returned to Saudi Arabia, married and returned to Canada again in December 2012 on the same type of visa, valid for 2 years. The Canadian Study Permit was issued on December 26, 2012 and expired on December 25, 2014. It allowed him to be accompanied by his wife.

It was for the purpose of post- secondary study and was issued on two conditions: unless authorized, he was prohibited from engaging in employment in Canada and he must leave Canada by December 25, 2014. [ 12 ] While in Canada during this time, he was in full time studies firstly at Kwantlen Polytechnic University and then at Camosun College. He was in Canada under a scholarship offered by Saudi Arabia. [ 13 ] On April 15, 2014 he, his wife and 4 month old child returned to Saudi Arabia to visit his family, returning to Canada in September to resume his studies.

Since then they became parents of another child. [ 14 ] They do not own any real property in Canada and have always rented accommodation while in Canada. [ 15 ] Mr Al Anazi has a British Columbia Services Card and is covered by a Health and Dental Plan issued by Great-West Life through the Cultural Bureau of the Royal Embassy of Saudi Arabia in Ottawa. He is not covered by the BC Medical Plan. [ 16 ] In addition to testimony given by Mr Al Anazi, I heard from Abdullah Almuthaq, a 34 year old business administration student at Royal Roads University in Victoria.

In 2013 he took on the role of assisting other students from Saudi Arabia in transitioning to Canadian culture, academics, finances and living situation. He gave testimony that there are 6000 – 7000 students from Saudi Arabia in Canada at any one time, approximately 350 of them in Victoria. He says the issue raised in this case arises 4 – 5 times a year amongst these students. [ 17 ] He testified that all or most of these students are in Canada under a Saudi Arabian scholarship. The scholarship pays all expenses associated with study in Canada.

The students make a commitment to the Saudi Government to study only, and on completion of their studies to work for 5 years in Saudi Arabia. [ 18 ] When contacted by Mr Al Anazi in March 2014 about his difficulties outlined above, Mr Almuthaq took on an advocacy role for Mr Al Anazi. [ 19 ] Mr Almuthaq attended at the Saanich Police Department and spoke to Sgt Price. Sgt Price advised him that the Saudi licence was not recognized. He then spoke to Michelle, a supervisor at ICBC (I am guessing this might be the Driver Services Centre on Mckenzie in Saanich).

She advised Mr Almuthaq that the Study Permit was sufficient evidence that a BC driver’s licence was not required if he had a valid Saudi licence. When Sgt Price disagreed on conveying this information to him, Mr Almuthaq set up a meeting attended by Michelle, Sgt Price and him. Sgt Price did not change his view after the meeting. Analysis [ 20 ] I agree with the position apparently taken by ICBC that a person in Canada on a Study Permit issued by Citizenship and

Immigration Canada on the same or similar conditions as that on Mr Al Anazi’s Permit shows sufficient evidence that he or she is not atthat time ordinarily resident in British Columbia. [21] But as this case also raises an issue of the ordinary residence of a full time student who enters British Columbia to attend a listededucational institution, and in an attempt to offer some judicial guidance in other cases, I will address the determination of ordinaryresidence on the facts other than the study permit. [22] Firstly, I say that my

interpretation of section 34(1.1)(

c) is that as long as the officer has evidence the driver has a valid driver’slicence issued elsewhere and the driver is a full time student at a listed educational institution, then the only issue should be, is he or sheordinarily resident in that issuing jurisdiction. As noted above, a driver in British Columbia on a Study Permit should be presumed to beordinarily resident in the issuing jurisdiction.

If there is suspicion that the driver may not be ordinarily resident in the issuingjurisdiction, then my discussion below will have some relevance. [23] In considering ordinarily resident, a distinction must be made between “resident” in British Columbia and “ordinarily resident”in British Columbia. A person can be resident here without being ordinarily resident here. A person can be resident in more than oneplace but only ordinarily resident in one place. [24] The term ordinarily resident arises in legislation in a number of contexts, most commonly income tax and vehicle insurance.

AsJustice Lambert said in a vehicle insurance case at paragraph 16 of Mathieu v. Insurance Corp. of British Columbia (1984) (BC CA), 60 BCLR 28, The meaning that has been out (sic) on those words or similar words, for the purposes of particular statutes must be considered in thelight of the statutory purpose in each case. [25] Context and statutory purpose are what must inform the meaning of the term.

I see the statutory purpose of the requirement ofsection 24(1), as informed by the exemption of section 34(1.1), is that anyone who has made British Columbia their home. and severedsufficient of the ties that make another place where they were formerly ordinarily resident, must obtain a driver’s licence issued underthe Motor Vehicle Act. [26] One case used the term “settled purpose” to describe an indicia of ordinarily resident.

There will be an number of indicia ofordinarily resident and the presence of some of them in one case will point to establishing ordinary residence but will be insufficient inanother case, depending on other factors and context. [27] The fact that a person is in British Columbia for a limited purpose might suggest he or she has not acquired ordinary residencehere.

Conversely, the fact a person in British Columbia has acquired Canadian citizenship or permanent residency might suggest he orshe has acquired ordinary residence here. [28] What will make it difficult for enforcement officers on this issue is determining what constitutes the ties to the other place thedriver says is his or her ordinary residence (because there has to be such a place elsewhere in order for British Columbia not to be thatperson’s ordinary residence).

For those who claim to have an ordinary residence outside Canada, the person’s status in Canada (visitor ortime limited vs Canadian citizenship or permanent residency) would be a good prima facie measure to use. [29] An enforcement officer has limited time and resources to determine a driver’s ordinary residence. Even the current status of adriver’s licence issued in a jurisdiction other than Canada or the United States is difficult to determine at roadside.

Compound thatdifficulty with a licence in a language other than English and the officer is in a unenviable position. [30] In many instances, it is the policy of the police to confiscate at roadside a driver’s licence issued elsewhere in situations wherethe officer considers that the driver is required to have a licence issued by British Columbia (and this occurred in this case).

Now thedriver is left with no licence to produce even if it turns out he or she was entitled to use it, and presumably is not even allowed to driveaway from the traffic stop. [31] All this suggests that the Government or ICBC need to find a better system for a driver to show an enforcement officer his or herentitlement to be exempt of the requirement of section 24(1) and for an enforcement officer to have sufficient evidence at roadside of that

entitlement. Decision [ 32 ] At the end of the hearing I found Mr. Al Anazi not guilty. These are my reasons for doing so. ______________________________________________ H. W. Gordon Judicial Justice